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HF 232

as introduced - 88th Legislature (2013 - 2014) Posted on 01/31/2013 01:21pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to civil law; modifying the statutory short form power of attorney;
authorizing certain judicial relief; amending Minnesota Statutes 2012, sections
523.20; 523.23, subdivision 1; 523.24, subdivisions 8, 14; proposing coding for
new law in Minnesota Statutes, chapter 523.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2012, section 523.20, is amended to read:


523.20 LIABILITY OF PARTIES REFUSING AUTHORITY OF
ATTORNEY-IN-FACT TO ACT ON PRINCIPAL'S BEHALF.

Any party refusing to accept the authority of an attorney-in-fact to exercise a power
granted by a power of attorney which (1) is executed in conformity with section 523.23 or
a form prepared under section 523.231; (2) contains deleted text beginadeleted text endnew text begin an acknowledgement andnew text end specimen
signature of the attorney-in-fact authorized to act; (3) with regard to the execution
or delivery of any recordable instrument relating to real property, is accompanied by
affidavits that satisfy the provisions of section 523.17; (4) with regard to any other
transaction, is signed by the attorney-in-fact in a manner conforming to section 523.18;
and (5) when applicable, is accompanied by an affidavit and any other document required
by section 523.16, is liable to the principal and to the principal's heirs, assigns, and
representative of the estate of the principal in the same manner as the party would be liable
had the party refused to accept the authority of the principal to act on the principal's own
behalf unless: (1) the party has actual notice of the revocation of the power of attorney
prior to the exercise of the power; (2) the duration of the power of attorney specified in the
power of attorney itself has expired; or (3) the party has actual knowledge of the death of
the principal or, if the power of attorney is not a durable power of attorney, actual notice of
a judicial determination that the principal is legally incompetent. This provision does not
negate any liability which a party would have to the principal or to the attorney-in-fact
under any other form of power of attorney under the common law or otherwise.

Sec. 2.

Minnesota Statutes 2012, section 523.23, subdivision 1, is amended to read:


Subdivision 1.

Form.

The following form may be used to create a power of attorney,
and, when used, it must be construed in accordance with sections 523.23 and 523.24:

STATUTORY SHORT FORM POWER OF ATTORNEY

MINNESOTA STATUTES, SECTION 523.23

IMPORTANT NOTICEnew text begin TO THE PRINCIPALnew text end: The powers granted by this
document are broad and sweeping. They are defined in Minnesota Statutes, section
523.24. If you have any questions about these powers, obtain competent advice. This
power of attorney may be revoked by you if you wish to do so. This power of attorney
is automatically terminated if it is to your spouse and proceedings are commenced for
dissolution, legal separation, or annulment of your marriage. This power of attorney
authorizes, but does not require, the attorney-in-fact to act for you.

new text begin IMPORTANT NOTICE TO THE ATTORNEY-IN-FACT: Each person named as an
attorney-in-fact in this document must sign and date below before exercising authority as
an attorney-in-fact.
new text end

PRINCIPAL (Name and Address of Person Granting the Power)

.
.
.
ATTORNEY(S)-IN-FACT
SUCCESSOR
ATTORNEY(S)-IN-FACT
(Name and Address)
(Optional) To act if any named
attorney-in-fact dies, resigns, or is
otherwise unable to serve.
(Name and Address)
.
First Successor
.
.
.
.
.
.
Second Successor
.
.
.
.
.
NOTICE: If more than one
attorney-in-fact is designated, make a
check or "x" on the line in front of one of
the following statements:
... Each attorney-in-fact
EXPIRATION DATE (Optional)
may independently
exercise
.
. ,
.
the powers granted.
Use Specific Month
Day
Year Only
... All attorneys-in-fact
must jointly exercise the
powers granted.

I, (the above-named Principal) hereby appoint the above named Attorney(s)-in-Fact to act
as my attorney(s)-in-fact:

FIRST: To act for me in any way that I could act with respect to the following
matters, as each of them is defined in Minnesota Statutes, section 523.24:

(To grant to the attorney-in-fact any of the following powers, make a check or "x" on
the line in front of each power being granted. You may, but need not, cross out each power
not granted. Failure to make a check or "x" on the line in front of the power will have the
effect of deleting the power unless the line in front of the power of (N) is checked or x-ed.)

.
(A)
real property transactions;
I choose to limit this power to real property in . County,
Minnesota, described as follows:
(Use legal description. Do not use street address.)
.
.
.
.
(If more space is needed, continue on the back or on an attachment.)
.
(B)
tangible personal property transactions;
.
(C)
bond, share, and commodity transactions;
.
(D)
banking transactions;
.
(E)
business operating transactions;
.
(F)
insurance transactions;
.
(G)
beneficiary transactions;
.
(H)
gift transactions;
.
(I)
fiduciary transactions;
.
(J)
claims and litigation;
.
(K)
family maintenance;
.
(L)
benefits from military service;
.
(M)
records, reports, and statements;
.
(N)
all of the powers listed in (A) through (M) above and all othernew text begin financial
new text endmatters.

SECOND: (You must indicate below whether or not this power of attorney will be
effective if you become incapacitated or incompetent. Make a check or "x" on the line in
front of the statement that expresses your intent.)

.
This power of attorney shall continue to be effective if I become incapacitated or
incompetent.
.
This power of attorney shall not be effective if I become incapacitated or
incompetent.

THIRD: deleted text begin(You must indicate below whether or not this power of attorney authorizes
the attorney-in-fact to transfer your property to the attorney-in-fact. Make a check or "x" on
the line in front of the statement that expresses your intent.)
deleted text endnew text begin My attorney-in-fact MAY NOT
make gifts to the attorney-in-fact or to anyone the attorney-in-fact is legally obligated to
support UNLESS I have initialed below and written in the name(s) of the attorney-in-fact:
new text end

new text begin (CAUTION: Granting this power may make it easier for your attorney-in-fact
to make improper or illegal transactions).
new text end

.
deleted text begin This power of attorney authorizes the attorney-in-fact to transfer my property
to the attorney-in-fact.
deleted text end new text begin I authorize my spouse, ......................................, as my
attorney-in-fact, to make gifts to my spouse.
new text end
.
deleted text begin This power of attorney does not authorize the attorney-in-fact to transfer my
property to the attorney-in-fact.
deleted text end new text begin I authorize, ......................................, (write-in
name(s)), as my attorney-in-fact, to make gifts to the attorney-in-fact (or to anyone
the attorney-in-fact has a legal obligation to support) but only as allowed by
Minnesota Statutes, section 523.24, subdivision 8, which limits the value of such
gifts to the federal annual gifting exclusion amount.
new text end

FOURTH: (You may indicate below whether or not the attorney-in-fact is required
to make an accounting. Make a check or "x" on the line in front of the statement that
expresses your intent.)

.
My attorney-in-fact need not render an accounting unless I request it or the
accounting is otherwise required by Minnesota Statutes, section 523.21.
.
My attorney-in-fact must render
.
(Monthly, Quarterly, Annual)
accountings to me or
.
(Name and Address)
during my lifetime, and a final accounting to the personal representative of my
estate, if any is appointed, after my death.

In Witness Whereof I have hereunto signed my name this . day of . ,
.

.
(Signature of Principal)
(Acknowledgment of Principal)
STATE OF MINNESOTA
)
) ss.
COUNTY OF
)
The foregoing instrument was acknowledged before me this ..... day of .........., ........,
by
.
(Insert Name of Principal)
.
(Signature of Notary Public or
other Official)
new text begin Acknowledgement and Specimen
Signature of Attorney(s)-in-Fact
new text end
new text begin (Notarization not required)
new text end
new text begin By signing below, I acknowledge that I
am a nominated attorney-in-fact, have
read this document, and understand
the duties assumed if I exercise the
powers granted. I am under no duty
to exercise any authority granted by
this document. If I take any action as
attorney-in-fact, I must act with the
interests of the principal utmost in mind.
I must also keep complete records of all
transactions entered under the authority
of this document and must give written
accountings as directed by the principal.
new text end
This instrument was drafted by:
deleted text begin Specimen Signature of
Attorney(s)-in-Fact
deleted text end
deleted text begin (Notarization not required)
deleted text end
.
.
.
.
.
.
.
.

Sec. 3.

Minnesota Statutes 2012, section 523.24, subdivision 8, is amended to read:


Subd. 8.

Gift transactions.

In the statutory short form power of attorney, the
language conferring general authority with respect to gift transactions, means that the
principal authorizes the attorney-in-fact:

(1) to make gifts to organizations, whether charitable or otherwise, to which the
principal has made gifts, and to satisfy pledges made to organizations by the principal;

(2) to make gifts on behalf of the principal to the principal's spouse, children, and
other descendants or the spouse of any child or other descendant, and, if authorized by
the principal in part Third, to the attorney-in-fact, either outright or in trust, for purposes
which the attorney-in-fact deems to be in the best interest of the principal, specifically
including minimization of income, estate, inheritance, or gift taxes, provided that,
notwithstanding that the principal in part Third may have authorized the attorney-in-fact
to transfer the principal's property to the attorney-in-fact, no attorney-in-fact nor anyone
the attorney-in-fact has a legal obligation to support may be the recipient of any gifts in
any one calendar year which, in the aggregate, exceed deleted text begin$10,000 in value to each recipient
deleted text endnew text begin the then applicable federal annual gift exclusion amount to each recipientnew text end;

(3) to prepare, execute, consent to on behalf of the principal, and file any return,
report, declaration, or other document required by the laws of the United States, any state
or subdivision of a state, or any foreign government, which the attorney-in-fact deems to be
desirable or necessary with respect to any gift made under the authority of this subdivision;

(4) to execute, acknowledge, seal, and deliver any deed, assignment, agreement,
authorization, check, or other instrument which the attorney-in-fact deems useful for the
accomplishment of any of the purposes enumerated in this subdivision;

(5) to prosecute, defend, submit to arbitration, settle, and propose or accept a
compromise with respect to any claim existing in favor of or against the principal based
on or involving any gift transaction or to intervene in any related action or proceeding;

(6) to hire, discharge, and compensate any attorney, accountant, expert witness, or
other assistant when the attorney-in-fact deems that action to be desirable for the proper
execution by the attorney-in-fact of any of the powers described in this subdivision, and
for the keeping of needed records; and

(7) in general, and in addition to but not in contravention of all the specific acts
listed in this subdivision, to do any other acts which the attorney-in-fact deems desirable
or necessary to complete any gift on behalf of the principal.

All powers described in this subdivision are exercisable equally with respect to a gift
of any property in which the principal is interested at the giving of the power of attorney
or becomes interested after that time, and whether located in the state of Minnesota or
elsewhere.

new text begin For purposes of clause (2), a gift shall include, but is not limited to, any transaction
in which the attorney-in-fact: (i) names the attorney-in-fact or anyone the attorney-in-fact
is legally obligated to support as beneficiary on a new or existing asset or account of
the principal, or (ii) names the attorney-in-fact or anyone the attorney-in-fact is legally
obligated to support as a joint owner with rights of survivorship on a new or existing
asset or account of the principal.
new text end

Sec. 4.

Minnesota Statutes 2012, section 523.24, subdivision 14, is amended to read:


Subd. 14.

All othernew text begin financialnew text end matters.

In a statutory short form power of attorney,
the language conferring general authority with respect to all other matters, means that the
principal authorizes the attorney-in-fact to act as an alter ego of the principal with respect
to any and all possible matters deleted text beginand affairs affecting property owned by the principal
deleted text endnew text begin affecting the financial affairs of the principalnew text end which are not enumerated in subdivisions 1
to 13, and which the principal can do through an agent.

Sec. 5.

new text begin [523.26] JUDICIAL RELIEF.
new text end

new text begin Subdivision 1. new text end

new text begin Authorization. new text end

new text begin In addition to any other remedies available under the
law, the principal or any interested person, as defined in section 524.5-102, subdivision
7, may petition the court for a protective order directing the attorney-in-fact to provide
an accounting, on a schedule directed by the court, or for any other relief as provided in
sections 524.5-401 to 524.5-502.
new text end

new text begin Subd. 2. new text end

new text begin Damages. new text end

new text begin If the court finds that an attorney-in-fact has failed to account to
the principal after the principal has requested an accounting, or if the court finds that an
attorney-in-fact has failed to account to any person named by the principal in the power of
attorney to receive accountings, the principal is entitled to recover damages equal to three
times the amount of compensatory damages or $10,000, whichever is greater. In addition
to damages, the principal, or other person to whom the attorney-in-fact failed to account,
is entitled to recover reasonable attorney fees and costs.
new text end

Sec. 6. new text beginEFFECTIVE DATE.
new text end

new text begin Sections 1 to 4 are effective August 1, 2013, and apply to powers-of-attorney
executed on or after that date. Section 5 is effective August 1, 2013, and applies to
powers-of-attorney executed before, on, or after that date.
new text end